Search

In over sixty years of operation, the Supreme Court of Japan has struck down only eight statutes and upheld a total of only twelve constitutional challenges to government action. Scholars have offered competing explanations for this record of passivity that range from the conservatism of the justices and the bureaucratic structure of the Japanese judiciary to the exercise of indirect political control by the long-ruling Liberal Democratic Party. Drawing on interviews conducted by the author with a variety of Japanese judges-including seven current or former members of the Supreme Court-this paper sets forth an institutional account of why the judiciary has failed to take a more active role in enforcement of the Japanese Constitution, and how it could be changed to ensure that it takes such a role. First, I describe, from bottom to top, the institutional structures that currently render the Supreme Court extremely unlikely to decide constitutional cases in a liberal or active fashion. These include the education, recruitment and promotion of Japan's career judges; the screening and selection of Supreme Court justices; the resource limitations and practical constraints faced by a sitting justice; and the influence of the chief justice and select administrators within the judiciary over the behavior of the lower courts and the composition of the Supreme Court. Second, I argue that these institutional structures create not an inherently conservative judiciary, but rather one that conforms to the sensibilities of its internal leadership and is therefore capable of responding quickly to a change in said leadership. Japan's post-war history of nearly unbroken one-party rule has highlighted the judiciary's bureaucratically enforced tendencies toward caution and uniformity, but it has also obscured the judiciary's institutional capacity for a rapid change in ideological direction. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Between 1924 and 1937, judicial decisions in the British Mandate of Palestine could not rest solely upon the testimony of a single witness; in both criminal and civil trials, all testimony required corroboration. As Palestine's Chief Justice Michael McDonnell noted, this provision was unique to Palestine and was unparalleled in other British dependencies. In my paper I consider why a colonial government, charged with maintaining law and order, would impose upon itself such a significant hurdle towards obtaining convictions. Archival research suggests a number of explanations which gravitate between the overt and covert rationales of the rule: at least initially, the rule was justified as a manifestation of British cultural sensitivity towards local custom, Ottoman law and Muslim law's two-witness requirement. However, confidential correspondences between Palestine's High Commissioner, Chief Justice and Attorney General, especially during the 1936 disturbances - when the corroboration requirement's abolishment was considered - suggest that the requirement stemmed from colonial prejudice toward Palestine's population. The correspondences addresses the low credibility of the population, that stemmed from their alleged low moral character, inability to distinguish fact from fiction and tendency to settle clan and tribal feuds by offering false incriminatory testimony. Through the prism of this rule, my paper suggests that procedural law in Palestine was by no means merely technical and was not simply a replication of the law of other British colonies, as existing literature often suggests. Rather, procedural rules were customized for the Palestine Mandate and often reflect colonial perceptions, prejudice and executive interests. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The rules of legal reasoning in civil law systems are aiming at hindering courts to move away from the Code. This aim has a very specific function: It supports the impression that courts apply strictly the values laid down by politics and nurtures the illusion that the democratic principle of power separation is working. Yet, it has often been shown that the rules of legal reasoning do not operate in the way intended: They function as ex post legitimation of judicial decisions and not as ex ante disciplining tools of judicial behaviour. By forcing the courts to focus on the internal structures of the legal system, they have had an unintended effect: They have brought about a cognitive closure of the system making it blind for the Luhmannian "society of society". This blindness ends up in serious failures of the system to cope with social evolution. The issue is in which di-rection we are to rethink the rules of legal reasoning. From a systems theory perspec-tive, the job of these rules must be to strike a balance between variety and redundancy within the legal system. This is to say that rules of legal reasoning have to regulate how much "society of society" has to be "let in" into the legal system so as to secure a so-cietally adequate law. How such new design of the rules of legal reasoning can be achieved will be shown in my paper whith the help of the systems theory concept of morphogenesis. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

My intention in the article will be to present how the public perception of the judiciary has been changing since the political changes in 2000, to describe and analyze the attitude of the most influential media, and at last to assess the actions and responses from the judiciary itself. I am going to use available data from the leading pooling agencies in Serbia, official data and daily and weekly newspaper in the period 2000-2007.The most interesting features of the "Serbian case" are the following issues:*The lustration process is being demanded in public intensively for the judicial branch, because of the seventeen year history of judicial abuse in service of former Serbian president Slobodan Milosevic.*There are several very important cases currently being processed in the courts, some of them dealing with the assassinations of the Prime Minister Zoran Djindjic, former President Ivan Stamolic, journalist Curuvija and various other public figures that were objects of what is being named in media as "State terror". Additional aspect of this proceedings relates to the fact that there is new court established in the "after 2000 period" - The Court for the Organized Crime.*There is a Serbia-specific standing point for assessment the domestic courts because of their constant comparison with the proceedings of the Ad hoc Tribunal for the crimes committed on the territory of the Former Yugoslavia in the period 1991 - 1999 that is situated in the Hague.*In response to the assassination of the PM Djindjic, Government declared martial law, suspending human rights to some degree and vigorously prosecuted the suspects that allegedly had taken part in the criminal part against the highest state representatives. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper traces judicial efforts to develop and manage public perception of the judiciary as the courts grapple with one of the more contentious legal issues in American society today--the legal recognition of same-sex relationships through marriage or other legal constructs. The paper focuses on the rhetorical strategies employed by the courts in Vermont, Massachusetts, New York and New Jersey as they set forth the reasoning for their decisions. The paper argues that the outcome of these cases is inextricably related to the role or persona created or assumed by the courts and justices involved. It concludes that the judicial "masks" created in these decisions have serious implications for the American judiciary and constitutional law far removed from the specific legal issues about legal recognition of same-sex relationships. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In most contemporary legal systems, there is a -formal or informal- requirement for public institutions such as courts or administrative agencies to provide reasons for their decisions. This requirement increasingly reaches other public and non-public institutions, such as parliaments, schools, hospitals, corporations, to such an extent that most decision-makers whose decisions directly affect the public seem to be subjected to some form of a duty to substantiate their decisions by a statement of reasons. The giving of reasons can be seen as one of the legal techniques employed by "New Governance" and it so profoundly affects contemporary institutions that a scholar has recently spoken of the explosion of an "audit society." This paper challenges the dominant picture of the duty to give reasons in the legal doctrine and, in doing so, will be limited to the consideration of courts and administrative agencies. Many rationales have been put forward in the legal literature to explain the duty to give reasons bearing on courts and agencies, e.g., ensuring public officials' accountability, monitoring their discretion, increasing the quality of the decision-making process. Based on ethnographic work accomplished in French administrative courts in 2006, my goal is to question these traditional explanations of the giving of reasons, in particular by taking into account the point of view of legal actors such as judges and administrators. To these ends, I employed the techniques of interviews and participant observation. Specifically, I observed hearings in an administrative court, and interviewed judges. I hope to show that the practice provides us with a divergent account of the duty to give reasons. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

There are three models of judicial decision making: the legal, attitudinal, and strategic models. We advance an integrated neo-institutional model of Supreme Court decision making that incorporates variables from each of the three models. In examining the modern Supreme Court, we argue that decisions are a function of the sincere preferences of the justices, the nature of precedent, the development of the particular issue, and public opinion, as well as separation of powers, the potential constraints posed by the president and Congress. We argue that judicial decision making is more nuanced than the attitudinal or legal models have argued in the past. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Mediation as a procedure for the arbitration of arguments out of court increases in practice and is seen more and more in contrary to a judicial decision as a fast, effective and economical solution. To ask is whether this procedure is suitable, which justice conceptions of the involved parties are needed and which abilities and talents, so -called key qualifications - are important for a successful mediation. In the available empirical investigation 110 mediators were asked about their professional situation, the quality of the professional practice in close relationship with work motivation and work satisfaction and its successful outcome. The participants of the study had a professional experience of many years in a legal, sociological or educational occupation before they decided to change into mediation as a new profession. The predominant part of the asked women is active in family mediation, while the male asked ones work in the field of work mediation. They were asked for their vocational starting situation and their work satisfaction and had to estimate of the relevant key qualifications for a „good " mediator. As important key qualifications are regarded communicative abilities, social and self competences. Intensive supervision and training are demanded by all asked ones. The work satisfaction and motivation is generally estimated as high. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

American courts have gradually become more receptive to scientific (including social science) data, to the point where now its use is routine in certain types of cases. Still, as Tanford (1991) showed, courts are the least likely of legal policy makers to consider such data and the most likely to misunderstand and misapply it in their decision-making processes, a failing that he attributed to legal culture. This raises the question of why legal culture is so oblivious to and inept at the use of scientific data when its use by some courts is routine. This paper looks for the answer in legal education by exploring one of its central components: casebooks. How do casebook editors treat the Court's use of scientific data? Nineteen Supreme Court decisions in which scientific data was pertinent to the Court's opinion were selected. These cases were compared (both quantitatively and qualitatively) to the edited versions of the opinions that appeared in all available editions of the leading constitutional law casebooks, as well as other casebooks. Subsequent editions were studied to see if there were any changes in the editor's treatment of the Court's discussion. The study shows that the over the last several decades editors systematically deleted the discussions of scientific data, and the pattern has not changed, even as the use of such data has become more frequent. The paper concludes with some suggestions on changing the casebook editing process to help law students, as future lawyers and judges, manage scientific data. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

Following September 11, 2001, the American public has been subjected to an almost continuous stream of threatening information with respect to terrorism. In response to the attacks, Congress authorized a significant broadening of the U.S. government's law enforcement capabilities through the adoption of the Patriot Act. The Act has resulted in much debate among those in the legal community and beyond regarding the effect of the new powers upon the scope of American freedoms. Yet, during the 'War on Terror' has the judicial branch, the main interpreter of American civil liberties, remained silent? This project examines the contours of Supreme Court and lower federal court decision-making in eras of prolonged crisis in a quantitative manner through a statistical investigation of linguistic indicators of threat, judicial restraint, freedom, retribution, patriotism and inter-branch cooperation within judicial decisions and other texts. The use of such linguistic indices represents an innovation within judicial politics because the method allows for the quantitative analysis of the language of opinions, oral arguments, briefs and other texts, adding a vital component to previous studies that largely employ quantitative analyses of justice vote choice alone. The 'scores' yielded through the analysis of the post-9/11 Supreme Court's decisions, both pertaining to national security as well as other issues, will be compared with its predecessor Courts, both in war-time and in peace. Further, such linguistic indicators will be compared with 'scores' given to the American public, the press and the executive branch through quantitative analysis of texts from these sources. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

In light of the success of state anti-gay marriage initiatives following the Supreme Court's decision in Lawrence v. Texas and the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health, many people have argued that using litigation to advance policy goals is a counterproductive strategy, particularly for the LGBT community. This is consistent with broader claims in the literature that suggest that litigation and judicial policymaking tend to generate countermobilization. However, it is not clear that it is litigation, per se, that prompted this opposition. What if, for example, the Massachusetts state legislature had recognized same-sex marriages instead of the SJC? Previous comparative research on abortion policy reform suggests that a similar backlash would have occurred, independent of the branch of government that created the policy. Thus, a comparative study of gay and lesbian rights policymaking is needed in order to draw useful conclusions. We propose to study the response to gay and lesbian rights policymaking by provincial and federal courts in Canada through public opinion data and the reactions of Parliament and the provincial governments. Given that legislative and public support for gay and lesbian rights has increased in the aftermath of a litigation campaign in Canada (one that has resulted in the legal recognition of same-sex marriages in the majority of provinces and territories), this suggests that litigation and judicial policymaking are not the key variables. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

Religious beliefs and values, possibly by definition, can play a vital role in the judicial disposition of cases, particularly where positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within academic, much less public, circles. To the contrary, the issue tends to be simply ignored, perhaps due to its delicacy or complexity, or categorically rejected pursuant to a disputable theory of public discourse or a particular reading of the Constitution's religion clauses. The central thesis of this paper is that the relationship between judging and personal or social religious influences is, in part due to the aforementioned context in conjunction with a legal culture suspicious of judicial interpretive discretion, one defined largely by concealment, much of it unconscious, rather than by successful and principled regulation. The paper's purposes are to develop this thesis more fully, to examine its consequences for the legitimacy of judicial decisionmaking, and, insofar as these consequences are unfavorable, to suggest some modest corrective measures. [ABSTRACT FROM AUTHOR]

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much less has been written about whether judges' religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously. In this comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking became abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion-religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior. Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we must not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense. [ABSTRACT FROM AUTHOR]